Agent Orange VA Claims—Don't Forget the “Blue Water” Sailors

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Agent Orange VA Claims—Don't Forget the “Blue Water” Sailors LAW REVIEW 16010 February 2016 Agent Orange VA Claims—Don’t Forget the “Blue Water” Sailors By Captain Morgan Little, USN (Ret.)1 and Captain Samuel F. Wright, JAGC, USN (Ret.)2 11.0—Veterans’ claims Agent Orange is the nicKname for a tactical herbicide that was very widely used by United States forces during the Vietnam War.3 At the time, Agent Orange was thought to be benign with respect to its effect on human health, but over time it became clear that humans suffer major adverse health effects from exposure to this chemical through inhalation, ingestion, or exposure via the sKin. Individuals who have been exposed to Agent Orange have a much higher incidence of diabetes, prostate cancer, and other diseases and conditions, and these diseases and conditions often manifest themselves decades after exposure. Of course, it is also true that millions of humans who have never served a day in the uniform of this or any other country and who have not been exposed to Agent Orange have developed these common diseases and conditions, because of genetic predisposition or because of environmental or occupational exposure to other harmful agents. In an individual case, there is no way to distinguish a disease caused by exposure to Agent Orange in military service from a disease that the individual may suffer anyway without regard to having served in the U.S. military. The United States Department of Veterans Affairs (VA) administers the provisions of title 38 of the United States Code that provide for monetary compensation for injuries and illnesses incurred during or resulting from military service. Claims involving wounds and other injuries are generally straightforward—the individual’s service record usually shows contemporaneous evidence of the wound or injury, and it is possible (even decades later) for physicians to offer 1 BS, University of Arizona, 1964; MS, University of Arizona, 1966; MBA, Rider University, 1978. Little served in the Navy and Navy Reserve as a Surface Warfare Officer and retired in 1998. Little is a life member of the Reserve Officers Association (ROA) and has served in offices at the chapter, department, and national levels, including serving as Vice President for Naval Services in 2007-08. 2 BA, Northwestern University, 1973; JD, 1976, University of Houston; LLM, 1980, Georgetown University. Wright served in the Navy and Navy Reserve as a Judge Advocate General’s Corps officer and retired in 2007. Wright is a life member of ROA and served as the Director of ROA’s Service Members Law Center from June 2009 through May 2015. 3 An official U.S. Government website explains: “‘Agent Orange’ refers to a blend of tactical herbicides the U.S. military sprayed in the jungles of Vietnam and around the Korean demilitarized zone to remove trees and dense tropical foliage that provided enemy cover.” http://www.benefits.va.gov/compensation/claims-postservice- agent_orange.asp. informed judgments as to whether the individual’s ailments and disabilities can reasonably be attributed to the wound or injury suffered during military service. Occupational disease claims are inherently much more difficult. Because of the limitations of medical science and available evidence, it is not possible to conclude definitively that the individual’s prostate cancer in 2007 was caused by exposure to Agent Orange during military service in Vietnam in 1969. The individual may have a genetic predisposition to prostate cancer. The individual may have been exposed to carcinogens before or after his military service. It will likely be impossible to prove from blood or urine tests performed four decades after the alleged exposure that the individual was even exposed to Agent Orange while serving in Vietnam. The usual standard for adjudicating VA claims of this nature is “more liKely than not.” To get the claim approved by the VA, the individual must demonstrate that it is more liKely than not that the present disease or condition was caused by environmental exposure to a harmful substance while in military service. Applying the more liKely than not standard to Agent Orange claims will inevitably result in the denial of most of these claims, simply because of the limitations of medical science and available evidence. In 1991, Congress made a policy judgment that it is better to pay VA claims for some Vietnam veterans who have diseases or conditions that they may have suffered anyway, without regard to their military service, than to deny other claims of veterans who have those diseases or conditions because of Agent Orange exposure in military service. Because it is not possible to ascertain, in any specific case, that a veteran’s disease or condition was caused by Agent Orange exposure, Congress gave these veterans the benefit of the doubt. If an individual veteran served in the relevant place at the relevant time, it is presumed that he or she was exposed to Agent Orange. If the veteran now suffers from a disease or condition that has a demonstrated higher rate of incidence among persons exposed to Agent Orange, it is presumed that the disease or condition was caused by Agent Orange exposure in military service. Operation Desert Storm (the liberation of Kuwait) began on January 15, 1991, after Saddam Hussein ignored the ultimatum to evacuate his troops from Kuwait and return the country to the Kuwaitis. As our country was dispatching a new generation of service members into combat, it seemed an opportune time to correct an injustice done to veterans from the last war, which had ended 16 years before. Accordingly, Representative G.V. “Sonny” Montgomery4 4 Representative Montgomery was a World War II Army veteran, and he attained the rank of Major General in the Army National Guard and as Adjutant General of Mississippi. In 1991, he was the Chairman of the House Committee on Veterans’ Affairs and was Known as the “godfather” of many great laws for veterans and Reserve Component personnel, including the Uniformed Services Employment and Reemployment Rights Act (USERRA), which was enacted in 1994. Representative Montgomery was also a life member of the Reserve Officers Association (ROA). He retired from Congress in 1996 and passed away in 2005. of Mississippi introduced the proposed “Agent Orange Act of 1991.” The bill proceeded through the congressional process with amazing alacrity. It passed the House of Representatives on January 29 and the Senate on January 30. On February 6, 1991, President George H.W. Bush signed the bill into law.5 The Agent Orange Act added a new section to title 38 and amended several existing sections. The gist of the Act is set forth in that new section, as follows: (a) (1) For the purposes of section 1110 of this title, and subject to section 1113 of this title,-- (A) a disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam6 during the period beginning on January 9, 1962, and ending on May 7, 1975; and (B) each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam7 during the period beginning on January 9, 1962, and ending on May 7, 1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service. (2) The diseases referred to in paragraph (1)(A) of this subsection are the following: (A) Non-HodgKin's lymphoma becoming manifest to a degree of disability of 10 percent or more. (B) Each soft-tissue sarcoma becoming manifest to a degree of disability of 10 percent or more other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. (C) Chloracne or another acneform disease consistent with chloracne becoming manifest to a degree of disability of 10 percent or more within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (D) HodgKin's disease becoming manifest to a degree of disability of 10 percent or more. (E) Porphyria cutanea tarda becoming manifest to a degree of disability of 10 percent 5 Agent Orange Act of 1991, Public Law 102-4, 105 Stat. 11. The citation means that this was only the fourth Public Law enacted during the 102nd Congress (1991-92). You can find this act in Volume 105 of Statutes at Large, starting on page 11. 6 The “Republic of Vietnam” was the official name of South Vietnam. 7 Applying U.S. domestic law and international law, the “Republic of Vietnam” included the territorial sea of that nation. LiKe most of the world’s nations, then and now, the Republic of Vietnam claimed territorial waters extending 12 miles from the nation’s shoreline. or more within a year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. (F) Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) becoming manifest to a degree of disability of 10 percent or more. (G) Multiple myeloma becoming manifest to a degree of disability of 10 percent or more.
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